E-discovery: Resolving issues through a collaborative approach

Every so often, a court case makes you look at a particular issue in a new way. Northern District of Illinois Magistrate Judge Nan Nolan’s recent decision in Kleen Products LLC v. Packaging Corporation of America is such a case. Itdemonstrates both the complexity of e-discovery and the ability for the court and the parties involved to work collaboratively from the outset of discovery and resolve issues in an expedited and efficient manner.

Kleen Products originated from a number of class action suits alleging antitrust violations in the containerboard industry brought against Georgia-Pacific LLC, Packaging Corp. of America, International Paper Co., Cascades Canada Inc., Weyerhaeuser Co., Temple-Inland Inc. and Smurfit-Stone Container Corp. The containerboard industry, which produces the principal raw material used to manufacture corrugated products, had been the subject of antitrust lawsuits for decades.

After surviving the defendants’ motion practice, the plaintiffs served all of the defendants in Kleen Products seeking written discovery on 94 categories of documents in order to establish that the defendants fixed the price of containerboard during a specific period of time. As might be expected, the defendants disputed the scope of the discovery on several points, including:

the relevant time period;

the manner in which the defendants were required to search for electronically stored information (ESI), including search methodology;

the number of employees required to search for responsive documents; and

whether the scope included information archived on back-up tapes.

After the case was referred to Nolan, she conducted hearings and conferences in an attempt to work through the disputes. Over a period of approximately six months, she oversaw two days of evidentiary hearings, conducted 11 status hearings and Rule 16 conferences with all parties, and facilitated three additional Rule 16 conferences between the plaintiffs and specific defendants.

Through this effort and significant dedication of time, the parties and Nolan resolved many of the issues and narrowed the scope of those that remained unresolved. The court’s and parties’ collaborative approach unquestionably yielded significant benefits for all involved by significantly truncating the litigation process.

Nolan outlined certain lessons that she learned from all parties working together in the Kleen Products litigation. She stated that first, “the approach should be started early in the case. It is difficult or impossible to unwind procedures that have already been implemented.” Nolan clearly took a collaborative approach from the moment she was assigned the case. Second, according to her, “in multiple-party cases represented by separate counsel, it may be beneficial for liaisons to be assigned to each party.” Lastly, Nolan stated that “to the extent possible, discovery phases should be discussed and agreed to at the onset of discovery.”

Without question, the ESI issues involved in Kleen Products were complicated and difficult. One could imagine the parties fighting over these issues for years. However, because of the proactive and collaborative approach Nolan adopted from the onset of the discovery process, most of the issues were resolved within 10 months. The manner in which Nolan accomplished that outcome is something that counsel should take notice of going forward. Nolan herself recognized this when she stated that “[i]n some small way, it is hoped that this Opinion can be of some help to others interested in pursuing a cooperative approach.”